Here is an update on recent en banc activity at the Federal Circuit. We are still waiting for the court to issue an opinion in Arellano v. McDonough, an en banc veterans case. As for pending petitions in patent cases, highlights include new petitions concerning Patent Trial and Appeal Board termination of inter partes review proceedings, reviewability of Board discovery rulings related to real-party-in-interest disputes, the utilization of expert witnesses in district court summary judgment proceedings, and standing before the Board. Here are the details.
En Banc Cases
We are still waiting for the court to issue an opinion in Arellano v. McDonough, which concerns whether 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling.
En Banc Petition
New Petitions
New petitions were filed in four patent cases.
In Sling TV, LLC v. Realtime Adaptive Streaming LLC, Sling TV asked the en banc court to review the following question:
- “Whether the Board may terminate an instituted IPR proceeding on the eve of a merits-based final written decision to reassess institution when 35 U.S.C. § 314(d) instruction that a decision to institute is ‘final’?”
In CyWee Group Ltd. v. Google LLC, CyWee Group asked the en banc court to review the following questions:
- “Whether the panel decision holding that all post-institution discovery rulings related to real-parties-in-interest issues are unreviewable upon appeal should be allowed to stand.”
- “Whether that panel decision should be allowed to stand when it sanctions arbitrary and capricious decision making by the Patent Trial and Appeal Board in direct contravention of the rules that the Board established to be relied upon by petitioners and patent owners for post-institution discovery related to real-parties-in-interest issues.”
In Wi-LAN Inc. v. Sharp Electronics Corp., Wi-LAN asked the en banc court to review the following question:
- “May a district court properly disregard an expert’s opinion on summary judgment when there is no dispute that the inadmissible facts or data forming the basis of the expert’s opinion are those kinds of facts or data that an expert in the field would reasonably rely in forming an opinion on the subject under Federal Rules of Evidence 703, and without making a factual inquiry and finding as to what data experts in the field find reliable, or affording the proponent sufficient process for defending its evidentiary submission, as required by regional circuit law?”
In Apple Inc. v. Qualcomm Inc., Apple asked the en banc court to review the following question:
- Whether the panel decision “is contrary to the . . . decisions of the Supreme Court of the United States [in] . . . MedImmune Inc. v. Genetech, Inc., 549 U.S. 118 (2007); Cardinal Chem. Co. v. Morton Int’l Inc., 508 U.S. 83 (1993); and Altvater v. Freeman, 319 U.S. 359 (1943).”
Denial
The Federal Circuit denied the petition for rehearing en banc in Baxter Corporation Englewood v. Becton, Dickinson and Co., which asked whether the Board erred when it used an uncited figure from a printed publication to “deci[de] to institute the subject IPR, and then find[] all challenged claims of [the ’273 Patent] invalid”?